Opinion
00 Civ. 6446 (WHP)
August 8, 2002
William Goodman, Esq. Center for Constitutional Rights New York, New York, Attorneys for Plaintiffs.
David S. Jones, Esq. United States Attorneys Office New York, New York.
MEMORANDUM AND ORDER
This action arises out of the 1989 Tiananmen Square protests in Beijing, the People's Republic of China. Plaintiffs are five student participants in those demonstrations who allege claims under the Alien Tort Claims Act, 28 U.S.C. § 1350, the Torture Victim Protection Act of 1991, Pub.L. No. 102-256, 106 Stat. 73 (1992), codified at 28 U.S.C. § 1350 note (2002), and various other laws, international treaties, agreements and conventions. Defendant, Li Peng, was the Premier of the People's Republic of China, and currently serves as President of the National People's Congress. The issue before this Court is whether the defendant, Li Peng, was properly served with process in this action. Specifically, was service on Li Peng complete when a member of his United States Department of State Security Detail accepted a copy of the summons and complaint in this action pursuant to an order of District Judge Richard Conway Casey, sitting as the Part I Judge of this Court.
On October 12, 2000, the United States through Assistant United States Attorney Wendy H. Schwartz, submitted a declaration pursuant to 28 U.S.C. § 517, advising this Court of an interest of the United States in certain circumstances allegedly omitted from the affidavit of service of the summons and complaint in this action. Pursuant to this Court's direct on, plaintiffs conducted discovery concerning the service of the summons and complaint. Thereafter, plaintiffs submitted memoranda of points and authorities, and the United States Attorney for the Southern District of New York submitted a Statement of Interest. For the reasons set forth below, this Court finds that service of process was complete when the papers were accepted by a member of the Department of State's security detail assigned to protect Li Peng in New York.
Background
For the purposes of this memorandum and order, the allegations of the complaint are taken as true.
Plaintiffs, Feng Suo Zhou, Gang Liu, Yan Xiong, Dan Wang, and John Doe are citizens of the People's Republic of China. In 1989, they were student activists and leaders of the protests at Tinananmen Square. (Compl. ¶¶ 1, 7-11.) Each of them sues on his own behalf, except for John Doe who sues on his own behalf and on behalf of his sister who was killed near Tiananmen Square on or about June 4, 1989. (Compl. ¶¶ 7-11.)
From 1988 until 1998, defendant, Li Peng, was the Premier of the People's Republic of China. Under the constitution of the People's Republic of China, the Premier, as the head of the State Council, holds the power "to alter or annul inappropriate orders, directives and regulations issued by the ministries or commissions" and "to alter or annul inappropriate decisions and orders issued by local organs of state administration at various levels." (Compl. ¶ 6.) Since 1998, defendant has served as President of the National People's Congress, which oversees the security forces and the judicial system of the People's Republic of China. (Compl. ¶ 6.)
Plaintiffs allege that Li Peng was responsible for summary execution, arbitrary detention, torture, and other torts that resulted in thousands of casualties. Specifically, the complaint asserts that Li Peng's proclamation of martial law on May 20, 1989, led to orders authorizing the use of force against the Tiananmen Square protesters. (Compl. ¶¶ 14-16.) The complaint alleges that soldiers of the People's Liberation Army and the People's Armed Police "used deadly weapons including semi-automatic machine guns and machine guns mounted on tanks and armored cars" to "clear Beijing's streets," and that soldiers "fired indiscriminately and recklessly and drove armored vehicles and tanks into crowds causing injury and death." (Compl. ¶ 17.) Plaintiffs further allege defendant's actions resulted in plaintiff, John Doe's sister, being shot to death by the military, and the other four plaintiffs being arrested and subjected to torture and other mistreatment. (Compl. ¶¶ 22-23.)
The Part I Order
Plaintiffs commenced this action on August 28, 2000, by filing the summons and complaint under seal. At that time, Li Peng arrived in New York to attend the Millennium Conference of Presiding Officers of National Parliaments from August 28th until September 1st, an event sponsored by the United Nations and the International Parliamentary Union. (Plaintiffs' Brief in Support of Plaintiffs' Contention that Defendant Li Peng was Properly Served ("Pls.' Br.") at 1-2.) On August 28, 2000, Marie Schembri, a licensed private investigator for plaintiffs, went to the Waldorf Towers, a separate wing of the Waldorf-Astoria Hotel, at 100 East 50th Street, New York, New York, where Li Peng was staying, to investigate the possibility of serving, and to attempt to serve, the summons and complaint on defendant. (Declaration of Marie Schembri dated August 28, 2000 ("Schembri Aug. 28th Decl.") ¶¶ 7-8.) Schembri ascertained that Li Peng was protected by an array of security that included the New York City Police Department ("NYPD") and a special security detail provided by the United States government. Schembri was advised by the NYPD that Li Peng's security in New York was similar to that provided to the President of the United States. (Schembri Aug. 28th Decl. ¶¶ 9-13.)
Based on Schembri's assessment of the security surrounding Li Peng, plaintiffs moved, ex parte, on August 28, 2000, for leave to effect service by alternate means since the statutory means were impracticable. (Pls.' Br. at 3.) Plaintiffs submitted a proposed order with their application. (Transcript or Conference dated Feb. 2, 2001 ("Feb. 2nd Tr.") at 9.) Plaintiffs' proposed order was based on an order used in Kadic v. Karadzic, 70 F.3d 232, 246 (2d Cir. 1995). (Feb. 2nd Tr. at 9; Pls.' Br. at 3.) The proposed order provided:
[T]hat service shall be accomplished by delivering a copy of the summons and complaint to any employee of the United States government or its agencies who is guarding defendant Li Peng during his stay in New York. Said employee is to forthwith provide said defendant with the said copy of the summons and complaint during defendant's stay in New York.
(Pls.' Br. at 3.)
On August 30, 2000, Judge Casey, sitting as the Part I Judge for this Court, granted plaintiffs' motion and signed their proposed Order ("Part I Order"). Like the other documents in this acton, the Part I Order was filed under seal. (Pls.' Br. at 3.) The next day, Judge Casey signed another ex parte order unsealing the file in this action; however, the date stamp on that August 31st order indicates that it was filed with the Clerk on September 1, 2000. (Order dated Aug. 31, 2000.)
Service on Li Peng's Department of State Security Detail
On August 31, 2000, at approximately 6:00 a.m., plaintiffs' process server, Luis Ayala, accompanied by Schembri, Xiao Qiang, Executive Director of Human Rights in China, Ed Wong, a New York Times reporter, and Spencer Platt, a New York Times photographer, went to the garage entryway of the Waldorf Towers lobby to locate "an employee of the United States or its agencies who [was] guarding Li Peng during his stay in New York." (Part I Order; Declaration of Marie Schembri dated March 22, 2001 ("Schembri Mar. 22nd Decl.") ¶¶ 3-5; Declaration of Xiao Qiang dated March 21, 2001 ("Qiang 3/21/01 Decl.") ¶ 2; Declaration of Luis R. Ayala dated May 1, 2001 ("Ayala Decl.") ¶ 4.) After canvassing the area, Ayala, Schembri, and Wong approached several NYPD detectives and identified themselves. Ayala and Schembri: informed the detectives that they had a court order authorizing service of process on Li Peng, and requested to speak to a member of the United States Security Detail. (Schembri Mar. 22nd Decl. ¶¶ 5-6; Qiang Decl. ¶ 3; Ayala Decl. ¶ 4.) Three gentlemen, one of whom was Special Agent Robert Eckert of the United States Department of State's Security Detail for Li Peng, approached Schembri, Ayala and Wong. As they talked, they were joined by Qiang and Platt. (Schembri Mar. 22nd Decl. ¶¶ 6-7, 9; Qiang Decl. ¶¶ 3-4; Ayala Decl. ¶¶ 4-5.)
Schembri informed Special Agent Eckert that they had a court order authorizing Ayala to serve Li Peng by delivering a copy of the summons and complaint to any employee of the United States Government protecting Li Peng in New York. (Schembri Mar. 22nd Decl. ¶¶ 7-8; Qiang Decl. ¶¶ 4-5; Ayala Decl. ¶ 5.) Special Agent Eckert inquired about the court order and Schembri advised him that it had been signed by "Judge Casey — U.S. District Court — Southern District of New York." (Schembri Mar. 22nd Decl. ¶ 7; Ayala Decl. ¶ 5.) Schembri then asked Ayala, who was holding a copy of the Part I Order, if Schembri had accurately quoted the order. After Ayala confirmed that she had, Special Agent Eckert asked to see a copy. Ayala displayed the Part I Order to Special Agent Eckert as he read it. (Schembri Mar. 22nd Decl. ¶ 8; Qiang Decl. ¶ 5; Ayala Decl. ¶ 5.) Then, Ayala handed a copy of the summons and complaint to Special Agent Eckert, who in turn agreed to sign the face of another copy of the summons acknowledging delivery of the summons and complaint. However, Ayala did not hand a copy of the Part I Order to Special Agent Eckert, and he never acknowledged receipt of the order. (Schembri Mar. 22nd Decl. ¶ 9; Qiang Decl. ¶ 5; Ayala Decl. ¶¶ 6-7.) At some point during the exchange, Special Agent Eckert insisted to both Schembri and Qiang that Li Peng was immune from litigation. (Schembri Mar. 22nd Decl. ¶ 7; Qiang Decl. ¶ 7.)
At deposition, Special Agent Eckert denied ever receiving a copy of the Part I Order, and could not recall anyone ever telling him about it while he was on duty at the Waldorf Towers. He also testified that he did not remember anyone showing him a copy of the Part I Order until he was being prepared for his deposition. (Transcript of Deposition of Robert A. Eckert Jr. dated October 26, 2000 ("Eckert Dep.") at 19, 36, 50-51, 54, 76-77.) After accepting delivery of the summons and complaint, Special Agent Eckert brought those documents to the Security Detail's "command post" within the Waldorf Towers, where he sought instruction from his supervisor, Special Agent in Charge ("SAC") Thomas Barnard. While at first Special Agent Eckert claimed to believe the papers were being served for a case against the Department of State's Security Detail, he implicitly acknowledged, before Schembri and Ayala had left, that he understood that the summons and complaint concerned an action against Li Peng and were meant to be given to him. (Eckert Dep. at 38, 52, 62-63.) Further, Special Agent Eckert conceded that before he met with his supervisor, he understood that Schembri, Ayala, and Qiang believed the Security Detail could act as a "proxy" for Li Peng. When asked to explain his use of the term "proxy," Special Agent Eckert offered, "we were agents of Mr. Li Peng and could receive services, a service of papers for him." (Eckert Dep. at 37-38.)
Special Agent Eckert testified that he told Mr. Qiang that "we're dealing with reciprocity here. What if every time the secretary of state goes to China they decide to start suing and arresting her [referring to then Secretary of State Madeleine K. Albright]." (Eckert Dep. at 62.)
SAC Barnard also testified that the summons and complaint were the only legal papers in the Department of State's possession, and that Special Agent Eckert told him that they were the only papers he received or knew about. (Transcript of Deposition of Thomas A. Barnard dated Feb. 13, 2001 ("Barnard Dep.") at 51.) Like Special Agent Eckert, SAC Barnard testified that he neither saw nor learned of the Part I Order. (Barnard Dep. at 54-57, 61.) However, in a September 13, 2000, incident report SAC Barnard noted that he was advised that "individuals were waiting in the Hotel lobby to serve a 'court order' to the 'U.S. State Department agents assigned to the Chinese Detail.'" (Declaration of William H. Goodman dated May 1, 2001 ("Goodman Decl.") Ex. 6.) Moreover, SAC Barnard also testified. that he never notified Li Peng of the existence or the summons and. complaint and did not turn them over to him. (Barnard Dep. at 57.)
Later in his incident report, SAC Barnard used the term "subpoena" to identify the legal papers. However, that imprecise reference does not detract from SAC Barnard's initial use of the term "court order" set off by quotation marks in his report. At deposition, he explained that he used quotation marks to capture the precise words that Special Agent Karen Lass used to describe one of the documents these individuals wished to serve. See Barnard Dep. at 26 ("[I]n my recollection it was the language that Karen Lass used to me, that there was some sort [sic] court order, and my understanding is that something was directed at the U.S. Department of State and specifically agents of the U.S. Department . . .")
On the morning of August 31, 2000, SAC Barnard gave a self-described "heads-us" to "a Chinese diplomat assigned to the United Nations mission here in New York" that "there were some legal papers." (Barnard Dep. at 65-66.) That diplomat was a "senior ranking member [who] spoke well enough English that he was more or less the point of liaison between the protection detail and the Chinese delegation," but was not part of Li Peng's personal staff. (Barnard Dep. at 67-68.) When SAC Barnard mentioned legal papers, "at that point [the Chinese diplomat] apparently knew what [SAC Barnard] was talking about and [SAC Barnard] was very careful when [he] spoke to [the Chinese diplomat to be very vague, but [he] didn't even have to be very careful because frankly [his] recollection [was] [the Chinese Diplomat] cut [him] off, [and the diplomat said] 'oh, I know about it.'" (Barnard Dep. at 65-66.)
SAC Barnard passed the summons and complaint, and an account of his conversation with the Chinese diplomat, along to his superiors. On the afternoon of August 31st, Darlene Kirk, an employee of the Press and Public Affairs Office for Diplomatic Security, left a telephone message for Schembri at the telephone number Schembri gave to Special Agent Eckert, indicating her intention to mail a letter to Schembri, but providing no further details. (Schembri Mar. 22nd Decl. ¶¶ 15-16.)
That same day, officials of the Department of State's Office of the Legal Adviser (the "Legal Adviser") informed Assistant United States Attorney Wendy H. Schwartz that a Department of State protective detail for Li Peng received unspecified court papers. (Declaration of Wendy H. Schwartz dated Oct. 12, 2000 ("Schwartz Decl.") ¶ 2.) The next day, AUSA Schwartz was informed by the Legal Adviser that a member of the protective detail "had been handed a summons and complaint in [this] matter, but had not received any order or other court papers." (Schwartz Decl. ¶ 3.) AUSA Schwartz obtained a copy of the summons and complaint later in the day. (Schwartz Decl. ¶ 3.)
While AUSA Schwartz did not know of any United States Government official who was served with a copy of the Part I Order, a news article in the New York Times on September 1, 2000, reported that an order authorizing service of process on the Diplomatic Security Detail was issued by Judge Casey. After learning of the New York Times report, AUSA Schwartz called Judge Casey's Chambers "around midday on Friday, September 1, 2000" to inquire about "any order regarding the United States Government and/or service of process in [this] action." (Schwartz Decl. ¶ 5.) AUSA Schwartz was unable to obtain any information and did not learn of the unsealing order dated August 31, 2000. (Schwartz Decl. ¶ 5.)
For the remainder of September 1st, AUSA Schwartz sought updates from the Legal Adviser concerning Li Peng's schedule. Late that afternoon, the Legal Adviser informed AUSA Schwartz that Li Peng was scheduled to leave New York sometime after 11:00 p.m. on September 1st. (Schwartz Decl. ¶ 6.) At 6:10 p.m. and again at approximately 7:30 p.m., AUSA Schwartz left voice mail messages for plaintiffs' counsel requesting a return call as soon as possible to indicate whether an order requiring any action by United States officials was extant. (Schwartz Decl. ¶ 7.) AUSA Schwartz informed plaintiffs' counsel in one of her Friday evening voicemails that the Government had neither received nor confirmed the existence of any court order relating to service of Li Peng, and as such was returning the summons and complaint to counsel. (Schwartz Decl. ¶ 8.)
On Tuesday, September 5, 2000, the first business day after the Labor Day weekend, AUSA Schwartz returned to her office to find two copies of the Part I Order had been faxed by plaintiffs' counsel — the earliest of which bore a facsimile legend indicating it was transmitted at 11:12 p.m. on September 1, 2000. (Schwartz Decl. ¶ 11.)
Service on the Waldorf Towers Concierge
After delivering the summons and complaint to Special Agent Eckert in the garage of the Waldorf Towers, Ayala and Schembri attempted an additional alternative method of service. They went to the concierge desk on the second floor of the Waldorf Towers where they identified themselves and announced they were there to serve Li Peng. Ayala then served the summons and complaint by placing copies on the concierge desk. Ayala and Schembri also asked the concierge for permission to go upstairs to serve Li Peng personally in his suite. The concierge refused their reguest and called security. At that point, Ayala and Schembri left the premises. (Schembri Decl. Mar. 22nd ¶¶ 13-14; Ayala Decl. ¶ 11.)
News Resorts Discussing this Action
On September 1, 2000, the Hong Kong media reported that this action had been filed in New York against Li Peng accusing him of human rights violations, and that he had been served at a New York hotel. (Goodman Decl. Ex. 10.) Many reports quoted Chinese government officials reacting to the lawsuit. For example, a Television Broadcasts Limited (TVB) report on Hong Kong television on September 1st at 6:30 p.m. Hong Kong time (6:30 a.m. E.D.T. on September 1st in New York), quoted Lu Congmin, the Vice Secretary General of the National People's Congress as saying, "Li Peng would not pay any attention to the summons. These people who have come out of China are hostile to their own motherland; they betray their own people. We basically will not pay them any attention." (Goodman Decl. Ex. 10.) Asia Television Limited (ATV) also reported Lu Congmin's comments as quoted in the (TVB) report in its news broadcast of September 1, 2000, at 6:00 p.m. in Hong Kong. (Goodman Decl. Ex. 10.) A news article in the September 1, 2000, edition of the Sing Tao Daily reported that Shen Guofang, China's deputy permanent representative to the United Nations, responding to journalists' questions, "shook his head and replied that the Chinese government already knew about the matter or this court summons, but that it was not yet appropriate to express opinions to the public." (Goodman Decl. Ex. 10.) Another report in the Sing Tao Daily on September 1st reported the following response by Lu Congmin to questions concerning his views of the complaint against Li Peng: "I have not studied it. I cannot comment." (Goodman Decl. Ex. 10.)
Plaintiffs insist that "[d)ue to the international date line, September 1 in Hong Kong is the equivalent of August 31 in New York." (Pls.' Br. at 8.) However, on September 1, 2000, Hong Kong time was twelve hours ahead of Eastern Daylight Time in New York. Thus, 6:30 p.m. in Hong Kong on September 1, 2000, was 6:30 a.m. on the same calendar day in New York.
On September 1st, the New York Times reported the allegations set forth in the complaint, the details of the Part I Order, and the circumstances surrounding service on the Security Detail. Edward Wong, Chinese Leader Sued in New York Over Deaths Stemming from Tiananmen Crackdown, N.Y. Times, Sep. 1, 2000, at A6. The New York Times report quoted a Department of State spokesperson as saying, "[w]e are not in a position to accept such a document on behalf of a foreign official." Wong, supra. Juxtaposed with the spokesperson's comment, the New York Times noted, "[h]owever, earlier this week, Judge Richard Casey ruled that a federal employee guarding Mr. Li could accept the summons, given the difficulty of reaching Mr. Li." Wong, supra.
Li Peng departed New York's John F. Kennedy International Airport bound for Beijing at 11:40 p.m. on September 1, 2000. (Schwartz Decl. ¶¶ 16-17.) Proof of service was filed on September 19, 2000. On October 12, 2000, AUSA David S. Jones, on behalf of the United States Government, submitted a letter and other documentation pursuant to 28 U.S.C. § 517, to draw the Court's attention to potentially significant information the Government believed plaintiffs omitted from their affidavit of service.
Pursuant to this Court's direction, plaintiffs submitted a brief and the Government filed a Statement of Interest addressing the question of whether delivery of the summons and complaint to the Department of State's Diplomatic Security Detail protecting Li Peng during his stay in New York constituted sufficient service.
The government submits a statement of interest pursuant to 28 U.S.C. § 517, which provides: "The Solicitor General, or any officer of the Department of Justice, may be sent by the Attorney General to any State or district in the United States to attend to the interests of the United States in a suit pending in a court of the United States, or in a court of a State, or to attend to any other interest of the United States."
The Government asserts that it has no knowledge and takes no position concerning plaintiffs' submission as to their efforts to serve defendant through a concierge at the Waldorf Towers, or concerning their assertions relating to defendant's possible knowledge of the instant matter. (Statement of Interest of the United States of America at 4 ("Gov't Br.").)
The sole issue before this Court is whether plaintiffs have effectuated service on defendant, Li Peng. Plaintiffs aver that service was effectuated on defendant in two different ways: (1) by delivery of the summons and complaint to Special Agent Eckert of the Department of State Security Detail protecting Li Peng, pursuant to the Part I Order, and (2) by delivery of the summons and complaint to the concierge of the Waldorf Towers, as a person of suitable age and discretion at Li Peng's dwelling house or usual place of abode, pursuant to Rule 4(e)(2) of the Federal Rules of Civil Procedure. The Government contends that the Part I Order should be construed to deem service on defendant complete only when a copy of the summons and complaint is delivered to Li Peng himself by the Security Detail. According to the government, any other interpretation of the Part I Order would be unconstitutional and strain our nation's relations with foreign states. The Government argues that because Li Peng was never handed a copy of the summons and complaint, service was never effectuated. However, the Government acknowledges that if the Part I Order is interpreted to hold that service is complete upon delivery of the summons and complaint to the Security Detail, then service has been effected on Li Peng.
The validity of the Part I Order directing United States protective personnel to deliver the summons and complaint to Li Peng is not at issue in this matter. The Government raises concerns about the effects such an order would have on its ability to protect visiting dignitaries and on foreign relations in general, but does not contest its validity. (Gov't Br. at 8 n. 5.)
Discussion
Federal Rule of Civil Procedure 4(e) governs service of a summons in federal courts. Rule 4(e) provides for service to be effected
(1) pursuant to the law of the state in which the district court is located, or in which service is effected, for the service of a summons upon the defendant in an action brought in the courts of general jurisdiction of the state; or
(2) by delivering a copy of the summons and of the complaint to the individual personally or by leaving copies thereof at the individual's dwelling house or usual place of abode with some person of suitable age and discretion then residing therein or by delivering a copy of the summons and of the complaint to an agent authorized by appointment or by law to receive service of process.
New York law provides several different methods by which process may be served. Only one of the methods provided by New York law is relevant here, namely delivery of the summons "in such a manner as the court, upon motion without notice, directs, if service is impracticable under paragraphs one, two and four of . . . section [308]." N.Y. C.P.L.R. 308(5).
Here, plaintiffs contend they served defendant by delivering a copy of the summons and complaint to a member of the United States Security Detail protecting Li Peng, in accord with the Part I Order issued pursuant to CPLR 308(5), and by delivering a copy of the summons and complaint to the concierge of the Waldorf Towers, a person of suitable age and discretion at defendant's dwelling house while he was in New York. Since the Government advances no position concerning plaintiffs' attempt to serve Li Peng through the Waldorf Towers concierge, and resolution of that question in plaintiffs' favor would obviate the need to reach a constitutional issue, this Court addresses service on the concierge first.
I. Service on the Concierge
Plaintiffs argue that service was effected on Li Peng by delivery of a copy of the summons and complaint to the Waldorf Towers' concierge, a person of suitable age and discretion, at defendant's dwelling house while he was in New York, pursuant to Rule 4(e)(2) of the Federal Rules of Civil Procedure. Service under Rule 4(e)(2) is effected when a copy of the summons and complaint is left at (1) the individual's dwelling house, with (2) some person of suitable age and discretion, (3) then residing therein.
The Waldorf Towers cannot be deemed Li Peng's dwelling house under Rule 4(e)(2) and therefore service was not effected by delivery of the documents to the concierge at the Waldorf Towers.
Plaintiffs rely on two cases, namely Pickford v. Kravetz, 17 Fed. Rules Serv. (Callaghan) 19 (S.D.N.Y. 1932), and Karlin v. Avis, 326 F. Supp. 1325 (E.D.N.Y. 1971), for their unprecedented argument that a hotel, where a defendant stayed for five days while in a foreign country, should be deemed that defendant's dwelling house,. Neither of these cases are applicable here and thus plaintiffs' argument is without merit.
In Pickford, the court held a New York City hotel where a third-party defendant and California resident stayed for eight days, was his dwelling house while he was in New York City. Pickford, 17 Fed. Rules Serv. at 19-21. However, the Pickford court relied heavily on the fact that the manager of the hotel where the third-party defendant was staying aided him in evading service. See Pickford, 17 Fed. Rules Serv. at 20-21. Emphasizing the hotel manager's entanglement with the third-party defendant, the Pickford court noted, "so interested was the hotel management in defeating the service that its attorney even sent for and scrutinized overnight the papers served." Pickford, 17 Fed. Rules Serv. at 21. As Senior District Judge Milton Pollack observed in Nat'l Dev. Co. v. Triad Holding Corp., 131 F.R.D. 408 (S.D.N.Y. 1990), a number of courts and commentators distinguished Pickford based on the fact that the court grounded its holding on the hotel manager's collusion with the third-party defendant to frustrate service. Nat'l Dev., 131 F.R.D. at 412 n. 6 (collecting authorities). This Court agrees with Judge Pollack.
Pickford is distinguishable from this action because there is no suggestion here that the Waldorf Towers concierge colluded with Li Peng to evade service. The paradigmatic behavior of the Waldorf Towers' concierge exemplified the conduct of a concierqe in any hotel, namely to prevent unannounced and uninvited guests from proceeding to a hotel guest's room. The actions of the Waldorf Towers' concierge were not acts of collusion with Li Peng, nor have plaintiffs advanced that argument.
Further, "a person can have two or more 'dwelling houses . . .,' provided each contains sufficient indicia of permanence." Nat'l Dev. Co. v. Triad Holding Corp., 930 F.2d 253, 257 (2d Cir. 1991); accord Fed. Deposit Ins. Corp. v. Scotto, No. 97 CV 1631, 1998 WL 357324, at *3-4 (N.D.N.Y. June 29, 1998); Jaffe and Asher v. Van Brunt, 158 F.R.D. 278 (S.D.N.Y. 1994); Nat'l Dev., 131 F.R.D. at 412. Here, the Waldorf Towers lacked any indicia of permanence for Li Peng. He was in New York for five days to chair a United Nations Conference. Although he stayed at the Waldorf Towers throughout his visit, there is no evidence that Li Peng stayed there at any other time or ever previously set foot in the United States. He left when the conference concluded, and did not reveal any intention of remaining longer.
Plaintiffs also rely on Karlin v. Avis, 326 F. Supp. 1325 (E.D.N.Y. 1971), where the district court held that service on the defendant's twenty-year old son at a Park Avenue apartment the defendant maintained and used from time to time in lieu of a hotel when he was in New York constituted service at the dwelling house of the defendant under CPLR 308(2). Karlin, 326 F. Supp. at 1329-30. The facts in Karlin are distinguishable from this case. As the court in Karlin noted, "[defendant's] connection with the Park Avenue apartment is considerably greater than a transient's nexus to a hotel." Karlin, 326 F. Supp. at 1329-30. Moreover, the defendant in Karlin had myriad connections to the New York apartment that included paying the rent for over a year, staying there whenever he was in New York, receiving telephone messages there, and maintaining the apartment in his own name. Karlin, 326 F. Supp. at 1329-30. In contrast, Li Peng was a transient with no other nexus to the Waldorf Towers. Thus, this case is inapposite.
Further, both the Second Circuit and Judge Pollack have noted the New York Court of Appeals' implicit rejection of the Karlin holding inMangold v. Neuman, 57 N.Y.2d 627, 454 N.Y.S.2d 58 (1982). See ITC Entertainment, Ltd. v. Nelson Film Partners, 714 F.2d 217, 221 n. 3 (2d Cir. 1983); Nat'l Dev., 131 F.R.D. at 412 n. 6; but see Krechmer v. Boulakh, 715 N.Y.S.2d 253, 254 (2nd Dep't 2000) (stating that Mangold only decided the issue of defendant's residence and not dwelling house or usual place of abode).
Similarly, other cases holding that either a hotel or an apartment used in lieu of a hotel was a dwelling house are also distinguishable. InHoward Johnson Int'l, Inc. v. Wang, 7 F. Supp.2d 336 (S.D.N.Y. 1998), the district court held that a Days Inn Hotel which the defendant owned and where he maintained one of his residences was the defendant's dwelling house or usual place of abode for Rule 4(e)(2) purposes. Howard Johnson, 7 F. Supp.2d at 340. In 131 Main St. Assocs. V. Manko, 897 F. Supp. 1507 (S.D.N.Y. 1995), the court held that an apartment was the defendant's dwelling house for Rule 4 purposes because the defendant stayed there whenever he was in Manhattan, which he visited with considerable frequency. 131 Main St. Assocs., 897 F. Supp. at 1524. The court noted that "[w]hile it is true that [Defendant's] presence at [the apartment] was episodic rather than constant, his association with [the apartment] was far from haphazard." 131 Main St. Assocs., 897 F. Supp. at 1524. Similarly, in Fed. Deposit Ins. Corp. v. Scotto, the defendants' vacation home, which was fully furnished for their sole use and where they employed a year-round caretaker, was a dwelling house or usual place of abode. Fed. Deposit Ins. Corp., 1998 WL 357324, at *3. Finally, in Jaffe and Asher v. Van Brunt, 158 F.R.D. 278 (S.D.N.Y. 1994), the court held a defendant's parents' home in New York was his dwelling house or usual place of abode despite his residence in California, since he stayed at his parents home whenever his was in the New York area, received. mail there, and maintained a private bedroom, clothes and a phone line at that address. Jaffe and Asher, 158 F.R.D. at 280.
Li Peng's five day stay at the Waldorf Towers bears none of the indicia of permanence discussed in those cases. His visit to the Waldorf Towers was not episodic; it was a unique and momentary event. As such, the Waldorf Towers do not qualify as Li Peng's dwelling house or usual place of abode under Rule (e)(2). Thus, this Court need not consider whether the concierge was a person of suitable age and discretion residing at the Waldorf Towers for Rule 4 purposes.
Because service was not effected under Rule 4(e)(2), this Court must now determine whether service was effected under the Part I Order pursuant to CPLR 308(5).
II. Service on The Department of State Security Detail
As discussed earlier, plaintiffs' investigator canvassed security at the Waldorf Towers and determined that traditional means of service would be impracticable. Thereafter, plaintiffs moved ex parte before the Part I district judge seeking an order authorizing an alternative method of service pursuant to CPLR 308(5). On August 30, 2000, Judge Casey granted plaintiffs' motion and directed:
that service shall be accomplished by delivering a copy of the summons and complaint to any employee of the United States government or its agencies who is guarding defendant Li Peng during his stay in New York. Said employee is to forthwith provide said defendant with the said copy of the summons and complaint during defendant's stay in New York.
(Order dated Aug. 30, 2000.)
The Government concedes that a copy of the summons and complaint was delivered to Special Agent Eckert, an employee of the United States Government who was guarding Li Peng. However, the Government argues that service is complete under the Part I Order only when an employee of the United States guarding Li Peng actually delivered a copy of the summons and complaint to Li Peng. Moreover, the Government asserts that reading the Part I Order to mean that service is complete once the process was delivered to an employee of the United States guarding Li Peng, would raise constitutional issues and spawn policy problems for the Government.
To satisfy the requirements of Due Process under the Constitution, service must provide
notice reasonably calculated, under all the circumstances, to apprise interested parties of the pendency of the action and afford them an opportunity to present their objections. The notice must be of such nature as reasonably to convey the required information, and it must afford a reasonable time for those interested to make their appearance. But if with due regard for the practicalities and peculiarities of the case these conditions are reasonably met the constitutional requirements are satisfied.Mullane v. Central Bank Trust Co., 339 U.S. 306, 314-15 (1950) (citations omitted); accord Peralta v. Heights Med. Ctr., Inc., 485 U.S. 80, 84 (1988). The Second Circuit has interpreted this requirement as notice "reasonably calculated to provide actual notice of the action." Nat'l Dev. Co. v. Triad Holding, 930 at 258. The Supreme Court has reiterated that "the core function of service is to supply notice of the pendency of a legal action, in a manner and at a time that affords the defendant a fair opportunity to answer the complaint and present defenses and objections." Henderson v. United States, 517 U.S. 654, 672 (1996); accord Fed. Deposit Ins. Corp., 1998 WL 357324, at *2. Finally, the New York Court of Appeals has commented that "[d]ue process is not, however, a mechanical formula or a rigid set of rules. Increasingly in modern jurisprudence, the term has come to represent a realistic and reasonable evaluation of the respective interests of plaintiffs, defendants and the state under the circumstances of the particular case." Dobkin v. Chapman, 21 N.Y.2d 490, 502, 289 N.Y.S.2d 161, 170 (1968)
Here, after concluding that all other service methods would be impracticable plaintiffs sought a court-ordered method of service, which was utilized successfully in a similar action. In Kadic v. Karadzic, 70 F.3d 232, 246 (2d Cir. 1995), there was no question regarding the sufficiency of service because the summons and. complaint was actually delivered to the defendant by the United States Security Detail who previously accepted the summons and complaint pursuant to a court order.Kadic, 70 F.3d at 246-47.
The court order authorizing an alternate means of service in Kadic states, in pertinent part,
that service shall be accomplished by delivering a copy of the summons and complaint to any employee of the United States government or its agencies who is guarding defendant . . . during his stay in New York, and said employee is to forthwith serve said defendant with the said copy of the summons and complaint during defendant's stay in New York.
(Kadic v. Karadzic, No. 93 CV 1163 (RO), Order dated March 4, 1993.
In this case, Judge Casey agreed with plaintiffs that the statutory methods of service were impracticable, and authorized service on Li Peng through his United States Security Detail. However, the Part I Order Judge Casey signed differed slightly from the one issued in Kadic. TheKadic order contained a single sentence that included a direction concerning how service would be accomplished and a direction to the United States Government employee to deliver the process to the defendant. (Kadic v. Karadzic, No. 93 CV 1163 (RO), Order dated March 4, 1993.) In contrast, the Part I Order consisted of two sentences: the first authorized the alternative method of service, and the second directed the United States Government employee to deliver the papers to Li Peng. Thus, the dispute reduces to one of syntax.
This Court finds that service on Li Peng was complete under the Part I Order when plaintiffs' process server delivered a copy of the summons and complaint to Special Agent Eckert. A plain reading of the Part I Order supports this conclusion. The Part I Order states, "service shall be accomplished by delivering a copy of the summons and complaint to any employee of the United States government or its agencies who is guarding defendant Li Peng during his stay in New York." Then in a separate sentence it directs "[s]aid employee is to forthwith provide said defendant with the said copy of the summons and complaint during defendant's stay in New York." Nothing in the Part I Order intimates that service is not complete until the Security Detail delivers the documents to Li Peng. To the contrary, the first sentence of the Part I Order specifies how service is to be "accomplished," while the second sentence embodies a separate direction to the Security Detail, entirely beyond the orbit of the process server.
The Part I Order innovates on the Kadic order by recognizing the limits on the process server's ability to penetrate Li Peng's security perimeter. In Kadic the functions were fused in a single sentence warranting the conclusion that service was not complete until delivery of the documents to the defendant. Here, the Part I Order divided responsibility for service between plaintiffs' process server and the Security Detail. That division requires that service be complete when delivery is made to the Security Detail. Thus, the Part I Order's two separate and distinct sentences distinguishes it from the Kadic order.
Nor is the Part I Order rendered unconstitutional by this interpretation. Requiring plaintiffs to deliver a copy of the summons and complaint to Li Peng's United States Government Security Detail satisfies the requirements of due process since it was reasonably calculated to give actual notice of this lawsuit to defendant. Neither plaintiffs nor the Part I judge had any reason to believe that the United States Government employee to whom the summons and complaint were handed, would not in turn take the appropriate steps to deliver those documents to Li Peng. In Kadic that is precisely what happened. This Court, thus, finds that this method of service was reasonably calculated to give defendant actual notice of the action at the time Judge Casey signed the order. Mullane, 339 U.S. at 314.
Although this method of service was reasonably calculated to give Li Peng notice of this action, future plaintiffs may not rely on it with respect to other protectees of the Department of State since its Security Detail did not deliver the summons and complaint to Li Peng. The more prudent practice would have been to serve a copy of the Part I Order on the Security Detail simultaneously with the delivery of the summons and complaint. Thus, the method of service approved in the Part I Order may hereafter fail to meet due process requirements of being reasonably calculated to give actual notice absent physical service on the Security Detail of the order directing them to deliver the papers to their protectee.
New York and federal law support such a conclusion. The Supreme Court, interpreting Mullane, has recognized that "in some cases it might not be reasonably possible to give personal notice." Walker v. City of Hutchinson, 352 U.S. 112, 115 (1956). The New York Court of Appeals, interpreting the predecessor to CPLR 308(5) — the provision plaintiffs utilized here — noted that
[o]ur law has long been comfortable with many situations in which it was evident, as a practical matter, that parties to whom notice was ostensibly addressed would never in fact receive it.Dobkin v. Chapman, 21 N.Y.2d 490, 502, 289 N.Y.S.2d 161, 171 (1968);accord Bossuk v. Steinberg, 58 N.Y.2d 916, 918, 460 N.Y.S.2d 509, 510 (1983) ("It is hornbook law that a constitutionally proper method of effecting substituted service need not guarantee that in all cases the defendant will in fact receive actual notice.")
The Second Circuit in Baker v. Latham Sparrowbush Assocs., 72 F.3d 246 (2d Cir. 1995), upheld service on the New York Secretary of State on behalf of a foreign corporation, although the corporation never received actual notice of the lawsuit. After discussing and analyzing Mullane, Walker, and Peralta, the Baker court held, "[i]n short, if as here a '[plaintiff] employs a procedure reasonably calculated to achieve notice, successful achievement is not necessary to satisfy due process requirements'" Baker, 72 F.3d at 255 (alteration in original) (quoting Katzon Bros., Inc. v. United States Envtl. Prot. Agency, 839 F.2d 1396, 1400 (10th Cir. 1988)). The Second Circuit has also held that "[t]he constitutional determination is derived from the necessities of each case rather than from a preconceived notion of what will provide actual notice in every case." Int'l Controls Corp. v. Vesco, 593 F.2d 166, 176 (2d Cir. 1979)
Other circuits have reiterated that actual notice is not necessary, only a method reasonably calculated to achieve actual notice. See, e.g., Katzon, 839 F.2d at 1400 (holding service constitutional where corporation served by registered mail, but secretary who received summons never forwarded the papers to her superiors); Day v. J. Brenadan Wynne, Inc., 702 F.2d 10, 11 (1st Cir. 1983) (holding service constitutional where corporation served via certified mail, return receipt requested, but claimed it never actually received notice).
Moreover, other acceptable methods of service do not require the person receiving the summons and complaint to actually forward the copies to the defendant being served. For example, both the Federal Rules and the CPLR permit service on a person of suitable age and discretion at a person's place of business, dwelling house, or usual place of abode, but do not require that person to actually deliver the papers before service is deemed complete. The plaintiff is only required to deliver the copies to the substituted person. See, e.g., Fed.R.Civ.P. 4(e)(2); N.Y. C.P.L.R. 308(2). The same is true for service on corporations; service is deemed complete once plaintiffs deliver the summons to the agent authorized to accept service, not when the agent forwards the summons to the corporation. See Fed.R.Civ.P. 4(h)(1); N.Y. C.P.L.R. 311(a)(1). In fact, other methods of effecting service under CPLR 308(5) that are arguably less likely to result in actual notice to a defendant have been held to satisfy due process. See, e.g., Harkness v. Doe, 689 N.Y.S.2d 586, 587 (4th Dep't 1999) (authorizing service on defendant by publication in newspapers and mailing to plaintiff's insurance carrier)
Here, the method of alternate service described in the Part I Order was reasonably calculated to give Li Peng actual notice of this action. A United States Government Security Detail previously accepted a summons and complaint and delivered. it to one of its protectees. Further, the Department of State's Security Detail interdicted all access to Li Peng making it impossible for any person to approach him and serve process. As plaintiffs point out, any attempt to serve Li Peng personally by approaching him could cause serious safety and security concerns.
Significantly, "[i]f a party receives actual notice that apprises it of the pendency of the action and affords an opportunity to respond, the due process clause is not offended." Baker, 72 F.3d at 254; accord Grammenos v. C.M. Lemos, 457 F.2d 1067, 1070 (2d Cir. 1972) ("The standards set in Rule 4[(e)] for service on individuals . . . are to be liberally construed, to further the purpose of finding personal jurisdiction in cases in which the party has received actual notice."). Here, several factors evidence that Li Peng had actual notice of this action while he was in New York. First, there is SAC Barnard's testimony that a liaison between the Security Detail and the Chinese delegation, although not a member of the delegation itself, said, in response to SAC Barnard's statement referring to this action, that they "already knew about it." (Barnard Dep. at 65-67., Also, Hong Kong media quoted Chinese Government officials who indicated that the Government of the People's Republic of China knew of the filing of this action in New York and that Li Peng was a defendant, no later than the early morning of September 1st, Eastern Daylight Time. (Goodman Decl. Ex. 10.) Further, an article in the September 1st edition of the New York Times discussed the lawsuit in detail, as well as the service of the summons and complaint on Li Peng's security detail. See Hong, supra.
Although news reports are not dispositive with respect to actual notice, a reasonable inference of actual notice arises from the fact that officials of the Chinese Government in New York and in Beijing knew that this action had been filed. That inference, together with the delivery of the summons and complaint to the Security Detail, supports a finding that the method of service authorized in the Part I Order meets fundamental due process requirements. Moreover, the media reports, particularly theNew York Times article discussing the lawsuit, published while Li Peng was in New York, buttress that finding. See, e.g., Mullane, 339 U.S. at 315-20 (upholding service via publication of notice in a newspaper)
The Department of State's argument that its protective detail are not agents of the protectee for purposes of accepting service and delivering papers to the protectee are unavailing. The Part I Order does not require service on an agent of Li Peng; rather, it required service on those law enforcement officers closest to Li Peng and accessible to plaintiffs because of the security net around the former Chinese Premier. The purpose of plaintiffs' ex parte motion for an order authorizing an alternate means of service is so they can effect service in a non-traditional way, which may include serving persons who are not agents of the defendant for accepting service. See Harkness, 689 N.Y.S.2d at 587 ("CPLR 308(5) gives a court 'broad discretion to fashion proper methods of notice in unpredictable circumstances.'" (citations omitted))
Although the Department of State's Security Detail's function is to provide security and not serve process, a tangential effect of their existence should not be the immunization of protectees from service of process. If a protectee, like Li Peng, wishes to assert a immunity defense or raise any issues concerning human rights law or the power to conduct foreign relations, those arguments should be presented in a court of law. The physical presence of a Security Detail does not insulate a protectee from the judicial process or empower the Department of State to determine unilaterally who among its protectees can be served with legal process. Finally, the Government's argument is further undermined by the axiomatic principle that service is authorized on non-agents of a defendant by the Federal Rules and the CPLR. See, e.g., Fed.R.Civ.P. 4(e)(2) (permitting service on person of suitable age and discretion); N.Y. C.P.L.R. 308(2) (same).
Notably, the Government has not raised any immunity defense on behalf of Li Peng either through its Statement of Interest or through a "Suggestion of Immunity" as it did in Kadic. Therefore, the issue of whether Li Peng is immune from suit or service in this country is not before this Court.
Next, the Government argues that plaintiffs' process server never served, or even displayed, the Part I Order to any United States Government official. The Government maintains that service of the Part I Order on the Security Detail would have "afforded the United States an opportunity to learn the contents of the Order and to determine an appropriate course of action." (Gov't Br. at 8.) Plaintiffs concede that they never served the Government with a copy of the Part I Order, and there is conflicting evidence as to whether any United States Government official was ever shown a copy or learned of its contents. Special Agent Eckert testified that he could not recall anyone ever telling him about, or showing him a copy of, the order, until his deposition. (Eckert Dep. at 19, 36, 50-51, 54, 76-77.) SAC Barnard testified that the summons and. complaint were the only legal papers in the State Department's possession, and that Eckert told him that those were the only papers Eckert received or knew anything about. (Barnard Dep. at 51.) However, plaintiffs have submitted three declarations from witnesses, including the persons who allegedly showed Special Agent Eckert the Part I Order and discussed its contents with him. (Schembri Mar. 22nd Decl. ¶¶ 7-8; Qiang Decl. ¶¶ 4-5; Ayala Decl. ¶ 5.) Finally, SAC Barnard's incident report referred specifically to a "court order" in his description of his initial contact with this matter. (Goodman Decl. Ex. 6.)
In its brief, as mentioned previously, the Government ruminates it is "concerned about the effect an order . . . would have on [the United States'] ability to protect visiting dignitaries and on foreign relations in general," but does not challenge the validity of the Part I Order at issue in this case. (Gov't Br. at 8 n. 5.)
Regardless of whether the Part I Order was ever shown to Special Agent Eckert or any other United States Government official, there was no reason to believe that the Department of State's Security Detail would not forward the summons and complaint to Li Peng as it did in Kadic. Thus, plaintiffs failure to serve the Part I Order on the Security Detail so that the Government can raise any opposition or "any other interest of the United States" to the issuing federal court, as discussed previously, is not fatal on the facts presently before this Court.
The Government also argues that a conclusion that service was effected under the Part I Order "would place extraordinary strains on the United States' already-difficult task of protecting visiting foreign dignitaries, and would significantly harm the United States' conduct of foreign relations." The Government asserts that precedent deeming the service complete upon delivery to United States protective personnel would have the harmful effect of precluding the United States, in appropriate cases, from moving to quash any ex parte orders seeking to compel service. The Government warns that the judiciary should exercise great care not to impair the Executive Branch's conduct of foreign relations. (Gov't Br. at 8-9.)
This Court is mindful of the difficult task the Department of State faces in protecting foreign dignitaries. However, the function of the Diplomatic Security Detail is to protect foreign dignitaries, like Li Peng, from physical harm, not service of process. Apart from that, the unique way in which events unfolded in this case is unlikely to be replicated thereby narrowing the scope of this Court's holding.
Conclusion
This Court finds that plaintiffs effected service on Li Peng pursuant to the Part I Order by delivering the summons and complaint to "any employee of the United States government or its agencies who is guarding . . . Li Peng." Service was complete when the summons and complaint was personally handed to Special Agent Eckert of the Department of State's Security Detail. Further, the Part I Order satisfies due process because it was reasonably calculated to give Li Peng actual notice of this action.